Board negligence must be proven for claim to stand

Q. Water from a roof leak damaged artwork in my unit. I made a claim with the association, and it refused to pay, stating the association did not have any prior knowledge of the leak. The association is responsible for the roof, so shouldn't they have to pay for my damaged artwork?

A. The association is not "strictly liable" for damage to an owner's personal property. This means the association is not automatically liable for such damages caused by water that infiltrated a unit from the common elements. However, if that damage results from the association's negligence, the association may have exposure to liability and the association's general liability insurance could be triggered.

The burden is on the unit owner to prove negligence. To demonstrate negligence (breach of the association board's fiduciary duty), the owner would have to prove the board knew or should have known of the common element source of the leak (a defective roof) and that the board did not take timely and/or appropriate action to repair the common element source of the water infiltration. That is a question of fact, based on the facts and circumstances in each case.

Q. The declaration for our condominium requires the association to provide notice of amendments to our declaration to mortgage holders of the individual units. Where does the board obtain the names and mailing addresses of the mortgage holders?

A. Section 22.1(c) of the Condominium Property Act requires owners to provide the association with the name and address of their lenders. It states: "Within 15 days of the recording of a mortgage or trust deed against a unit ownership given by the owner of that unit to secure a debt, the owner shall inform the Board of Managers of the unit owner's association of the identity of the lender together with a mailing address at which the lender can receive notices from the association."

Moreover, that section provides that "if a unit owner fails or refuses to inform the board as required under subsection (c), then that unit owner shall be liable to the association for all costs, expenses and reasonable attorney's fees and such other damages, if any, incurred by the association as a result of such failure or refusal."

The board should request owners to provide the name and address of their mortgage holder, and the board should remind owners that they will be responsible for the costs discussed above if they don't. That said, if an owner does not provide the information, the association's attorney should be able to obtain it through a title search from a title company. The fee could then be charged to the owner.

Q. Can the board of my condominium prevent me from installing an electronic/keypad lock on the exterior part of the door to my unit? It is a matter of security and convenience that is very important to me. The board told me I cannot do this as it wants to maintain "uniformity of appearance."

A. The entrance door of a condominium unit is typically part of the common elements; albeit limited common elements in many associations. Similarly, the covenants for an association typically include language that requires board approval for any addition, alteration or improvement to the common elements. Such language should be applicable to an owner's desire to install an electronic/keypad on the exterior of the unit door.

Many associations do place uniformity of appearance of the exterior of units as a high priority. This should serve as a reminder that owners in associations do give up rights that they might have if they did not live in an association.

• David M. Bendoff is an attorney with Kovitz Shifrin Nesbit in the Chicago suburbs. Send questions for the column to him at CondoTalk@ksnlaw.com. The firm provides legal service to condominium, townhouse, homeowner associations and housing cooperatives. This column is not a substitute for consultation with legal counsel.